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2012 DIGILAW 2098 (RAJ)

Subhash Kashyap v. Bikaner University

2012-10-05

VINEET KOTHARI

body2012
Hon'ble KOTHARI, J.—The plaintiff-appellant Subhash Kashyap has filed the present second appeal in this Court on 3.4.2012 aggrieved by the decision of the Additional Dist. Judge No. 2, Bikaner allowing the defendant-Bikaner University's appeal No. 19/2010- Bikaner University and Ors. vs. Subhash Kashyap and Ors. and reversing the judgment and decree dtd. 19.8.2010 by the learned Additional Civil Judge (J.D.) No. 1, Bikaner in civil suit No. 61/2009 - Subhash Kashyap vs. Bikaner University and Ors. by which the learned trial Court decreed the suit of the plaintiff Subhash Kashyap for mandatory and permanent injunction inter alia holding that the plaintiff was entitled to be given 3 grace marks and was to be declared pass in LL.B. Ist year examinations of the year 2007. The learned trial Court also noticed that during the pendency of trial itself, the plaintiff had passed 2nd and 3rd year of LL.B. Examinations from Bikaner University and the relevant Ordinance of the university could not stand in the way of the plaintiff student being declared pass in LL.B. Ist year examination. The learned trial Court however did not admit in evidence the said Ordinance (the relevant statute) as the envelop in which the same was produced by the defendant- University was marked "confidential". This was, with great respect to the learned trial Judge, was not correct, but it gave rise to first appeal filed by defendant-University. 2. The University's appeal came to be allowed by the learned Additional Dist. Judge No. 2, Bikaner, deprecating the stand taken by the learned trial Court that the Ordinance even though produced in sealed cover marked "confidential" was merely a statute which ought to have been looked into by the learned trial Court and in the absence of the same, the decree in favour of the plaintiff could not be sustained and thus the first Appellate Court set aside the said decree. While setting aside the said decree, the learned appellate Court has given its own reasons that the plaintiff was not entitled to 3 grace marks and on a perusal of said Ordinance, which the Appellate Court looked into, at a maximum, the plaintiff could have been given 2 grace marks, but still could not be declared pass in LL.B. 1st year examination. 3. 3. The dispute arose because the plaintiff in the first instance in LL.B. First year of 2007 secured 33 marks in the paper "Contract Law" and 28 marks in the paper "Law of Torts". Thus, he was held entitled to appear in Supplementary examinations for the said LL.B. 1st year papers. So appearing, in supplementary examinations, the plaintiff also appears to have applied for revaluation of his marks in these two papers and on such revaluation, his revised marks in paper "Contract Law" were increased from 33 to 40, but in the paper "Law of Torts," they were reduced from 28 to 18 marks. In the supplementary examinations undertaken by the plaintiff, he secured 51 marks in the paper "Contract Law" and 33 marks in the paper "Law of Torts", but the minimum pass marks were 36 out of 100. Thus, the plaintiff could not be declared pass for LL.B. 1st year examinations as in one paper, his marks were less than the minimum of 36 marks. The plaintiff in these circumstances approached this Court aggrieved by the judgment dtd. 5.1.2012 of the first appellate Court in the present second appeal. 4. Having heard the learned counsel for the parties, in the opinion of this Court, the following substantial question of law as to the interpretation of said Ordinance, does arise in the matter. Hence, following substantial question of law was framed and arguments were heard on the same. "Whether the plaintiff was entitled to 3 grace marks in the paper relating to "Law of Torts" after declaration of his result in supplementary examination of LL.B. 1st year of 2007 in pursuance of Ordinance of defendant-Bikaner University." 5. The relevant Ordinance is reproduced below for ready reference: "3. D.O. In the case of compulsory/Core/optional subjects the marks of which are counted for division, grace marks to the extent of 1% of the aggregate marks prescribed for an examination (excluding the marks of compulsory subjects not counted for division) will be awarded to a candidate failing in (a) two subjects or (b) in one subject and in one practical or (c) in two practicals or (d) in one subject/practical and/or aggregate, as the case may be, provided the candidate passes in the examination by the award of such grace marks. N.B.:- Theoretical and practical tests (whoever held) in a subject will count as two subjects. N.B.:- Theoretical and practical tests (whoever held) in a subject will count as two subjects. (ii) where minimum pass marks are prescribed in one part of a subject and a candidate fails to obtain minimum pass marks in that part as well as in the whole subject, he will be deemed to have passed in the subject if the greater of the two deficiencies, of which the two deficiencies are equal, either of them is covered by the award of grace marks. (iii) Each paper in LL.B. certificate and Bachelor of Library Science, B.Ed. B.Ed. (Sc./Com. Agr/Lang./Home Sc), B.Ed. (S.S.C.C.) and Shiksha Shastri shall count as one subject. (iv) If 1% of the aggregate marks works out in fraction the same will be raised to the next whole number. For example, if the aggregate marks prescribed for an examination are 450 grace marks to the extent of 5 will be awarded to the candidate. 4. A candidate who passes in a subject or in the aggregate by the award of grace marks will be deemed to have obtained the necessary minimum for a pass in that subject or in the aggregate and shown in the marks-sheet to have passed by grace. Grace marks will not be added to the marks obtained by a candidate from the examinations nor will the marks obtained by him from the examiners be subject to any deduction due to the award of grace marks in any other subject or aggregate. 5. If a candidate passes the examination but misses first or second division by one mark, his aggregate will be raised by one mark so as to entitle him for the first or the second division as the case may be. This one mark will be added to the paper in which he get the least marks and also the subject total and the aggregate by showing plus 1 (1+1) in the tabulation register below the marks actually obtained by the candidate. The marks entered in the marks-sheet will be inclusive of one grace mark and it will not be shown separately. 6. An oriental candidate appearing at the B.A. examination under Ordinance 167 will be awarded grace marks in the elective/optional subject to the extent of 1% of the aggregate marks of the elective/optional subjects offered by him provided he passes the examination by the award of such grace marks. 6. An oriental candidate appearing at the B.A. examination under Ordinance 167 will be awarded grace marks in the elective/optional subject to the extent of 1% of the aggregate marks of the elective/optional subjects offered by him provided he passes the examination by the award of such grace marks. Grace marks in compulsory subjects will be awarded as per rule 2. 7. A candidate who having failed in one subject only at the B.Ed. B.Ed. (Sc./Com. Agr/Lang./Home Sc), B.Ed. (S.S.C.C.) re-appears in the failing subjects only at the next annual examination will be awarded one grace mark to enable him to pass the examination. 8. Candidates appearing in (a) one extra optional subject/special paper the result of which does not affect the result of the examination, e.g. General English in II/III year T.D.C. Arts and Commerce and special paper at the B.Ed. Examination or (b) an additional optional subject, or (c) one or more optional subjects of I year T.D.C. under Ordinance 86-A or (d) Elementary Mathematics under ordinance 218 - Note No. 6 or (e) failing subjects only and not the examination as a whole (as in the case of Ayurvedacharya, examination), will be awarded grace marks in each subject to the extent of 1% (fraction if any, will bee raised to the next whole number) of the maximum marks prescribed for the subject concerned, provided the candidate passes in the subject (s) by the award of such grace marks. CONTROLLER OF EXAMINATIONS." 6. The said Ordinance as produced before this Court by the learned counsel for the respondent University being a statute could certainly be looked into by the learned trial Court also and the learned trial Court had erred in not taking the same in evidence and perusing the same as produced in envelop marked "confidential" and to that extent the appellate Court can be justified in saying that the trial Court has erred, but the fact remains that on a correct interpretation of said Ordinance, the plaintiff is entitled to the relief, which he prayed for before the Courts below. 7. A perusal of the Ordinance reproduced above clearly shows that there was no restriction of grace marks to the extent of 1% only for each paper of LL.B. 1st year examinations. Admittedly, there were 9 papers in the said examinations of LL.B. Ist year conducted by the defendant- University. 7. A perusal of the Ordinance reproduced above clearly shows that there was no restriction of grace marks to the extent of 1% only for each paper of LL.B. 1st year examinations. Admittedly, there were 9 papers in the said examinations of LL.B. Ist year conducted by the defendant- University. The Ordinance says that grace marks to the extent of 1% of the aggregate marks prescribed for an examination (excluding the marks of compulsory subjects not counted for division) will be awarded to a candidate and further the example given in clause (iv) of the said Ordinance quoted above provides that if 1% of the aggregate marks words out in fraction, the same will be raised to the next whole number. The example says that if the aggregate marks prescribed for an examination are 450 the grace marks to the extent of 5 will be awarded to the candidate. This Example further clarifies the intention of the said statute that the grace marks are not restricted to 1% of maximum marks for each paper or unit of said Examinations, namely, LL.B. 1st year, but it was intended to be 1% of the total maximum marks of all the papers of said examinations. The plaintiff needed 3 grace marks in his paper "Law of Torts", which the trial Court decreed and granted to him by way of relief, even though not looking into the Ordinance. This Court is of the clear opinion that the plaintiff was so entitled to get these 3 grace marks, as per the extant Rules applicable to him during the relevant period as reproduced above. 8. The vagaries of variance in the marks speaks volumes in the present case. The candidate who got 33 marks in Contract Law and 28 marks in Law of Torts, upon revaluation of the marks, in one subject, the marks were increased from 33 to 40 and in another subject, the marks were reduced from 28 to 18. He appeared in Supplementary examinations and secured 51 marks in the paper "Contract Law" and 33 marks in "Law of Torts." Who knows, if the revaluation of marks was again permitted even in supplementary examinations, he would have been awarded more than 36 marks in the paper relating to "Law of Torts" on the same answer-sheet. He appeared in Supplementary examinations and secured 51 marks in the paper "Contract Law" and 33 marks in "Law of Torts." Who knows, if the revaluation of marks was again permitted even in supplementary examinations, he would have been awarded more than 36 marks in the paper relating to "Law of Torts" on the same answer-sheet. Where such is the variance in awarded marks in the course like LL.B. involving only theoretical questions and answers and in the absence of relevant Ordinance restricting the giving of grace marks to the extent of 1% of maximum marks of each paper, the trial Court could not have been faulted in giving the said relief. 9. Moreover, this Court is of the view that the plaintiff having cleared second and final year of law course during the pendency of trial itself could not have been non-suited and declared fail depriving him of the said LL.B. Degree itself. 10. This Court also expresses its concern about the falling standard of law education in our country. But students alone cannot be blamed for this. It is equally and rather more so, the blame of falling standard lies on the Universities and faculty members who carry a bounden and pious obligation while serving the Universities as teachers to see that budding lawyers and students are not made to suffer in the manner in which facts of the present case speaks volumes. Looking to the extent of variance in the marks in the present case, one needs to introspect who is to be blamed and this Court can only express its anguish and concern. This Court cannot do more than granting permissible relief to the plaintiff in accordance with the extent Rules and it is left for the concerned bodies, teachers and students included to give a thought to this and let all of the concerned join hands and forge ahead for taking up the standard of law education in our country, high and higher. 11. Accordingly, the question framed above is answered in favour of plaintiff student and against the defendant-University and the present second appeal of the plaintiff is allowed and the decree of first appellate court dtd. 3.4.2012 under appeal is set aside and that of the trial Court dtd. 11. Accordingly, the question framed above is answered in favour of plaintiff student and against the defendant-University and the present second appeal of the plaintiff is allowed and the decree of first appellate court dtd. 3.4.2012 under appeal is set aside and that of the trial Court dtd. 19.8.2010 is restored and it is held that the plaintiff is entitled to be declared pass in LL.B. (1st year) examinations of 2007 by award of three (3) grace marks in the paper of "Law of Torts" as per the terms of the relevant Ordinance quoted above and be declared pass accordingly. No order as to costs. A copy of this order be sent to all the concerned parties and both the courts below.